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Employment Law News

 

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Six months to go: is your business ready for the employment law reforms coming into force in April 2020?

Change in the employment law sphere rarely slows down – even in the face of Brexit.  We are now only six months away from a host of employment law reforms, most of which are scheduled to come into force on 6 April 2020.  Below we outline the reforms and the preparatory steps for employers.

1. Reform of the IR35 regime in the private sector

From 6 April 2020, large and medium-sized businesses in the private sector that engage independent contractors via a personal service company (PSC) will become responsible for assessing whether the off payroll working rules (known as IR35) apply.  The Government’s Check Employment Status Tool is designed to help with this assessment.  Once the end-user business has made its assessment it must notify the contractor and the PSC of its decision (and reasons) and provide them with the opportunity to challenge the assessment.  Assuming the end-user business is closest to the PSC in the contractual chain, it will also become responsible for deducting income tax and NICs at source through PAYE and paying employer NICs.

Next steps? Identify whether you engage any contractors via a PSC and determine whether the IR35 rules will apply to any such contracts.  Check whether your contract with the PSC permits the deduction of income tax and NICs and, if not, enter into revised contracts.  Ensure the necessary payroll arrangements are in place for 6 April 2020.

2. Employment contracts

The right to a written statement of particulars of employment will be extended to all workers and must be given on the first day of work.   Significantly, the content of the statement will be enhanced.  In future, the statement must contain the existing “principal statement” particulars plus some of the existing “supplementary statement” particulars.  Further, new particulars relating to working time, paid leave, benefits and probationary periods must also be incorporated into the statement.    Only a very limited amount of information may be given separately within two months of starting work, including a brand new requirement to provide particulars of training entitlements.

Next steps? Identify any workers who will need a statement and begin updating template contracts to capture the new requirements in readiness for 6 April 2020.

3. Calculating holiday pay

There will be a change to the reference period used to calculate holiday pay for certain types of workers.  Where a worker has variable pay because they have either: (i) no normal working hours; or (ii) normal working hours but pay that varies with the amount of work done or the time the work is done, then the reference period will increase from 12 weeks to 52 weeks.  The exception to this is where the worker has been engaged for fewer than 52 weeks.  In such cases, the reference period will be the number of weeks that the worker has been engaged.  This reform does not apply to workers who have normal working hours and non-variable pay (i.e. most salaried workers).

Next steps? Ensure that internal policies are updated to reflect this change where necessary and the new calculation model is adopted from 6 April 2020.

4. Taxation of termination payments

Employer class 1A NICs will become payable on termination payments above £30,000 (which are currently only subject to income tax).  Termination payments will remain completely exempt from employee NICs.  This reform was initially due to come into force in 2018, but was delayed first to 6 April 2019 and then again to 6 April 2020.

Next steps? Although there are no immediate steps to take, remember to factor in this extra cost when negotiating settlements with departing employees.

5. Better rights for agency workers

The provision which exempts agency workers from the right to pay parity with permanent employees until they have 12 weeks’ service (known as the “Swedish derogation”) will be repealed on 6 April 2020.  Agencies must notify agency workers of their right to have the same conditions as those employed directly by the hirer and confirm that the Swedish derogation no longer applies.  Agency workers will also become entitled to receive a “Key Facts” statement before starting a placement, which sets out core information relating to the proposed placement.

Next steps? Assess whether you engage any agency workers on Swedish derogation contracts and calculate the additional cost to the business of paying them in line with comparable permanent staff.  Be prepared to enter into new terms with the agency supplying the affected agency workers.

6. Information and consultation of employees

The percentage of employees required to make a valid request to start negotiating an agreement on informing and consulting employees (under the Information and Consultation of Employees Regulations 2004 (ICE Regs)) will be lowered from 10% to 2% (subject to a minimum of 15 employees).

Next steps? Familiarise yourself with the negotiation procedure in the ICE Regs given the higher chance of receiving a request to negotiate.

7. New right to parental bereavement leave

From April 2020 (implementation date to be confirmed), employees who suffer the loss of a child below the age of 18 will become entitled to 2 weeks’ statutory leave to be taken within 56 days of the date of death.  The right to parental bereavement leave will be a stand-alone right and will not affect rights to take other relevant forms of leave such as dependant emergency leave.  Employees with 26 weeks’ service will also be entitled to receive 2 weeks’ statutory pay.

Next steps? Consider whether you will enhance the statutory right – both in terms of leave and pay.  Put in place an appropriate bereavement policy, outlining the right and any other forms of support available to bereaved employees.

BDBF can help your business navigate these changes. If you would like to discuss any of the issues raised in this article, please contact Amanda Steadman on 020 3828 0363 or email amandasteadman@bdbf.co.uk.

 

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Employment Law News

 

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Unwanted shoulder massages at work did not amount to harassment

In the era of #MeToo, employers are under increasing pressure to stamp out sexual harassment in the workplace.  Faced with a more knowledgeable and vocal workforce, employers must ensure that the workplace culture does not encourage or tolerate inappropriate conduct, with managers expected to model exemplary behaviours.  That being the case, the recent decision in Raj v Capita Business Services and anor may seem surprising.  However, it reminds us that the context in which alleged harassment takes place is a vital part of the jigsaw and may, on occasion, mean that no unlawful conduct has taken place.

What does the law say?

The Equality Act 2010 prohibits harassment at work on certain grounds.  This covers unwanted conduct of a sexual nature or related to sex which violates the worker’s dignity or creates an intimidating, hostile, degrading, humiliating or offensive environment.

Claims can be brought against both the individual perpetrator of the harassment and the employer.  Even where an employer doesn’t know about the harassment, it will be vicariously liable unless all reasonable steps had been taken to prevent such conduct from happening.

What happened in this case?

Mr Raj was employed by Capita Business Services Ltd for about a year.  His employment was terminated during the probationary period on the grounds of poor performance.  He went on to bring a suite of claims, including one for sexual harassment and/or harassment related to his sex.  Mr Raj complained that his Team Leader, a Ms Ward, had massaged his shoulders, neck and back on several occasions at work.  Mr Raj’s former colleagues gave evidence that they had witnessed this take place.

What was decided?

The Employment Tribunal found that the massaging had occurred on two or three occasions and had made Mr Raj feel uncomfortable.  Yet they rejected the claims for the following reasons:

• The massaging did not amount to conduct “of a sexual nature” because of the context in which had arisen. It was limited, had taken place in an open plan office and had been accompanied by “jokey” expressions of praise from Ms Ward.  This was not consistent with sexual behaviour.  It was also pertinent that Mr Raj had not reported the matter to his union representative at the time.
• The massaging did not amount to harassment “related to” the fact Mr Raj was a man. The Tribunal accepted that the conduct was unwanted and had the effect of creating an intimidating, hostile, degrading, humiliating or offensive environment.  They noted that some physical contact at work would obviously amount to harassment, but this case was “very difficult to assess”.  Ultimately, they decided there was insufficient evidence to say that the conduct related to Mr Raj’s sex.  Instead, it was best characterised as “misguided encouragement” from a manager towards an under-performer, involving contact with a “gender neutral” part of the body in an open plan setting.

Mr Raj’s appeal to the Employment Appeal Tribunal was dismissed on the basis that the Employment Tribunal had made detailed findings about the context in which the massaging had occurred and was entitled to reject the claims.

What are the learning points?

We should not interpret this decision as approving shoulder massages or similar physical contact at work.  The employer (and Ms Ward) avoided liability here due to the specific context in which the touching arose.  In a different scenario, similar types of touching could amount to harassment.

Employers must ensure they have taken all reasonable steps to prevent inappropriate behaviour at work.  This means having a policy in place, communicated to all staff, setting out examples of unacceptable behaviour and clarifying that breaches will result in disciplinary action.  Alongside this, employers should deliver regular dignity at work training and be confident that they know how to deal with complaints of sexual harassment in line with the best practice guidance issued by Acas.

Employers should also monitor developments in this area closely as significant reforms are on the horizon.  The Government has announced the imminent introduction of a statutory code of practice in this area.  It has also recently consulted on a range of measures designed to eradicate sexual harassment at work, including introducing a statutory duty on employers to protect employees from harassment.  That consultation closed on 2 October 2019 and the Government’s response is awaited.

Raj v Capita Business Services and anor

If you would like to discuss any of the issues raised in this article, please contact Amanda Steadman on 020 3828 0363 or email amandasteadman@bdbf.co.uk.

 

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Employment Law News

 

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Employees and workers planning to blow the whistle protected by whistleblowing laws

A recent decision of the Employment Tribunal has significantly expanded whistleblowing protection in the UK.  In Bilsbrough v Berry Marketing Services Ltd the Employment Tribunal ruled that whistleblowing protection extends to those who are perceived or believed to be preparing to blow the whistle but have not yet done so. 

What does the law say?

Workers who blow the whistle have the right not to be subjected to detrimental treatment on the ground that they have made a protected disclosure.  In addition, employees have the right not be dismissed because they have made a protected disclosure.  On the face of it, the legislation does not protect those who are preparing to blow the whistle but have not yet done so.

What happened in this case?

Mr Bilsbrough, was employed by Berry Marketing Services Ltd.  He discovered a potential data security issue and reported it to a director of the company, rather than his line manager, Ms Swatkins.  Although the disclosure had been made in accordance with the company’s whistleblowing policy, Ms Swatkins was unhappy about being bypassed and very firmly told Mr Bilsbrough that he should “engage his brain” in future.

Mr Bilsbrough resented being spoken to in this manner and later told a colleague that he planned to “take the company down” by externally reporting the data security issues that he had uncovered.  He began researching how to make a disclosure to the Information Commissioner’s Office (ICO).  Ms Swatkins heard about Mr Bilsbrough’s plan and decided to suspend him pending disciplinary action.  At the end of the disciplinary process, Mr Bilsbrough was summarily dismissed for having declared an intention to damage the company.

Mr Bilsbrough went on to bring claims alleging he had been subjected to detriments and dismissed because he was planning to blow the whistle.

What was decided?

Mr Bilsbrough had to convince the Employment Tribunal that the whistleblowing legislation covered proposed protected disclosures as well as actual protected disclosures in order to give effect to his right to freedom of expression under the European Convention of Human Rights.

Breaking new ground, the Tribunal accepted this argument.  They agreed that detrimental treatment meted out on the ground that a worker had researched and considered whistleblowing (or a dismissal because they had done so) would interfere with the right to freedom of expression.  The Tribunal noted that “…without such an interpretation, effective protection in the context of whistleblowing is not given… [I]f employers are permitted lawfully to sanction workers whom they perceive to have considered making or be liable to make a protected public interest disclosure this would have a chilling effect on the making on public interest disclosure.”

The result was that the detriment claim succeeded. The suspension decision had been driven by the belief that Mr Bilsbrough had researched and considered making a protected disclosure to the ICO.  However, the requirements to remove work-related material from a laptop and to cease contact with other employees were not separate whistleblowing detriments.  Instead, they were “consequences” of the suspension, albeit they made the impact of the suspension worse.  Taking all of this into account, the Tribunal awarded the sum of £2,500 for injury to feelings.

Yet the more valuable dismissal claim failed.  The Tribunal decided that Mr Bilsbrough had been dismissed because of his threat to bring the company down, not because of the actual or proposed whistleblowing.  The Tribunal was satisfied that the threat had caused legitimate concern about how he would behave in future if he became angry with his manager.

What are the learning points?

This is a significant decision signalling the expansion of whistleblowing protection.  However, as a first instance decision on a novel point of law, it is quite possible that there will be further appeals.  Therefore, it may be some time before we have a binding authority on whether potential whistleblowers are protected.  However, it is worth noting that the whistleblowing charity, Protect, is lobbying for the legislation to be amended to cover both potential whistleblowers (such as Mr Bilsbrough) and perceived whistleblowers (i.e. those who are wrongly assumed to have blown the whistle).

In the meantime, employers would be wise to exercise caution when it comes to employees who they suspect or believe may blow the whistle.  The safest course of action would be to work on the assumption that they are protected from detrimental actions and dismissal and seek legal advice on your options.

Bilsbrough v Berry Marketing Services Ltd

If you would like to discuss any of the issues raised in this article, please contact Amanda Steadman on 020 3828 0363 or email amandasteadman@bdbf.co.uk.

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Employment Law News

 

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Vegetarianism is not a philosophical belief under the Equality Act 2010

To date, an eclectic range of beliefs have acquired protection from discrimination at work, from beliefs in climate change, Scottish nationalism and the ability of mediums to communicate with the dead, to beliefs against lying, fox hunting and hare coursing.  Therefore, one could be forgiven for thinking that a belief in vegetarianism would easily acquire protection.  Yet in the case of Conisbee v Crossley Farms Ltd an Employment Tribunal ruled that vegetarianism did not pass the test.

What does the law say?

Workers are protected from discrimination in employment on the grounds of their religion or their religious or philosophical belief.   However, only philosophical beliefs which meet a certain standard are protected.  In order to be covered, a philosophical belief must:

• be genuinely held and be more than a mere opinion or viewpoint;
• concern a weighty and substantial aspect of human life and behaviour;
• have a certain level of cogency, seriousness, cohesion and importance;
• be worthy of respect in a democratic society; and
• not be incompatible with human dignity or conflict with the fundamental rights of others.

What happened in this case?

Mr Conisbee was a vegetarian.  He worked as a waiter for Crossley Farms Ltd for five months.  He resigned shortly after a dispute at work and proceeded to claim he had been discriminated against on the grounds of philosophical belief, namely vegetarianism.  In order to proceed with his claim, Mr Conisbee first had to convince the Employment Tribunal that a belief in vegetarianism qualified for protection under the Equality Act 2010.

He argued that he had a genuine belief in vegetarianism based on the premise that it was morally wrong to subject animals to cruel farming methods and kill them for food.  He also believed vegetarianism was better for the environment.  He pointed to the fact that vegetarianism had been recognised as a belief for the purposes of the European Convention of Human Rights and that other less mainstream beliefs had successfully acquired protection under the Equality Act 2010.

What was decided?

Surprisingly, the Tribunal was not persuaded that vegetarianism was a belief capable of protection for the following key reasons:

• Mr Conisbee did not have a principled objection against killing animals for food. Instead, it was better described as an opinion or viewpoint that the vegetarian way of life was better than a carnivorous one.
• This belief was little more than an admirable lifestyle choice and did not concern a weighty and substantial aspect of human life and behaviour.
• The plurality of reasons for becoming a vegetarian (e.g. lifestyle, health, animal welfare, personal taste etc.) meant it did not attain the necessary level of cogency, seriousness, cohesion and importance. The Tribunal contrasted this with veganism “…where the reasons for being a vegan appear to be largely the same”,namely a principled objection against eating animal products on welfare and/or environmental grounds.

What are the learning points?

For now, it seems that vegetarians do not acquire special protection from discrimination in the workplace.  However, this decision suggests that veganism is a more cogent belief system and leaves open the question of whether it is a protected philosophical belief.

That question will be answered in the case of Casamitjana v The League Against Cruel Sports, where a Tribunal will rule on whether Mr Casamitjana’s “ethical veganism” is a philosophical belief worthy of protection.  Given the indications made by the Tribunal in this case, it seems likely that ethical veganism will pass the test and acquire protection.

If veganism is protected then employers will need to be mindful not to discriminate against workers on this basis.  A recent survey of 1,000 vegan employees revealed that almost half felt they had been discriminated against by their employer and almost a third felt they had been harassed or unfairly treated at work due to their veganism. Particular risk areas include failing to provide vegan food options in the staff canteen and at work events or having a requirement to wear leather shoes or otherwise use leather products.  Employers should also ensure that they have taken reasonable steps to prevent the harassment of vegans.  This will include training on dignity at work which reminds the workforce that unwanted teasing of vegan colleagues could constitute unlawful harassment.

Conisbee v Crossley Farms Ltd and others

If you would like to discuss any of the issues raised in this article, please contact Amanda Steadman on 020 3828 0363 or email amandasteadman@bdbf.co.uk.

 

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